There is
“no reason to modify the forever wild clause” of the New York State
Constitution—which protects the state-owned Forest Preserve in the Adirondacks
and the Catskills—concludes a report released today by the New York State Bar
Association.

After
examining the historical record, the report concludes that fears—such as those that
some groups expressed in 1997—that a future constitutional convention might
weaken the “forever wild” clause are unwarranted.

However,
the report points to other environmental provisions in the state Constitution
that “merit serious consideration by policymakers and the public.”

The report,
“The Conservation Article in the State Constitution (Article XIV),”recently was
approved by the Association’s House of Delegates.

“In less
than 12 months, New Yorkers will go to the polls to decide whether to call a
constitutional convention that would study and recommend changes to the state
Constitution. Our report on the Conservation Article offers voters an
insightful analysis of environmental issues that a convention might consider,”
said Claire P. Gutekunst, president of the New York State Bar Association.

Ultimately,
any amendments proposed through a constitutional convention must be approved by
state voters.

The
Forever Wild Clause

In 1894,
voters ratified an amendment that mandates that the state-owned Forest Preserve
“shall be forever kept as wild forest lands.”

The
amendment’s catalyst was the destruction of Adirondack forests by the lumber
industry during the 19th century, raising alarm about the impact on rivers,
canals and water supplies hundreds of miles away, all critical to the state’s
economic well-being.

Since 1894,
the report observes, “there has never been broad-based public support for
repealing or diluting the forever wild protections, and nothing in
the lengthy record of past conventions and amendments to Article
XIV suggest that delegates to a 2019 Convention would seek to do so.”

As another
measure of public support, the report also notes that voters and the
Legislature repeatedly have expanded the Forest Preserve, which now protects
2.6 million acres in the Adirondacks and 286,000 acres in the Catskills.

Other
sections of the Conservation Article

Elsewhere
in the Conservation Article, the report identifies opportunities to simplify
its text and address obsolete aspects.

The report
also examines what was intended to be a “Conservation Bill of Rights” (Section
4 of Article XIV), approved by voters in 1969. Instead of conveying specific
rights, its language appears aspirational, saying, for example, that conserving
and protecting “natural resources and scenic beauty” shall be “the policy of
the state.” However, that provision lacks teeth, the report says. “Citizens
apparently cannot seek judicial enforcement of the Conservation Bill of Rights,
as they can the ‘forever wild’ clause. “

The report
examines pros and cons of making the right to a clean environment an
enforceable right. On one hand, “arguably, the narrow scope of Section 4
in Article XIV is insufficient to address New York’s new environmental
challenges.” It notes that the constitutions of Pennsylvania and five
other states recognize specific environmental rights that are enforceable.

On the other
hand, the report makes note of broad environmental protections under existing
state and federal laws that were enacted after the amendment’s adoption in
1969. “Thus it is debatable whether the addition of a self-executing
constitutional environmental right could do more; indeed it might even lead to
needless, duplicative litigation, which would discourage economic development,
especially in economically-depressed regions of the state,” the report states.

The report
concludes, “In 2017, voters will have a unique opportunity to debate whether
the provisions of the state Constitution’s Conservation Article, Article XIV,
are sufficient to meet current needs or can otherwise be improved.”

The
Conservation Article report is available at www.nysba.org/ArticleXIVreport. It was written by the
Association’s Committee on the New York State Constitution, which is chaired by
Henry Greenberg of Albany (Greenberg Traurig).

Additional
information about the NYS Constitution

The
committee’s previous reports examine the need for a nonpartisan commission to
prepare for the 2017 referendum (www.nysba.org/nysconstitutionreport); and the “Home Rule” provision,
which deals with relative powers of the state and local governments (www.nysba.org/homerulereport). Its next report will focus on New
York’s court system.

The New
York State Bar Association recently published a 400-page book called Making
a Modern Constitution: The Prospects for Constitutional Reform in New York.
To download a free copy or purchase a paper copy, go to: www.nysba.org/ConConBook/.

The 74,000-member
New York State Bar Association is the largest voluntary state bar association
in the nation. It was founded in 1876.